Citation Nr: 0113125
Decision Date: 05/09/01 Archive Date: 05/15/01
DOCKET NO. 00-19 803 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York
THE ISSUE
1. Entitlement to an initial rating in excess of 10 percent
for residuals of frostbite of the right foot.
2. Entitlement to an initial rating in excess of 10 percent
for residuals of frostbite of the left foot.
REPRESENTATION
Appellant represented by: New York Division of Veterans'
Affairs
ATTORNEY FOR THE BOARD
C. Bryant, Associate Counsel
INTRODUCTION
The veteran had active military service from March 1944 to
April 1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1999 rating decision in which
the RO granted service connection for residuals of frostbite
of the right foot and the left foot, and assigned an initial
rating of 10 percent, respectively. The veteran filed a
timely notice of disagreement and his appeal for a higher
rating has been perfected to the Board.
FINDINGS OF FACT
1. The veteran's service-connected residuals of frostbite of
both feet are evidenced by subjective complaints of pain in
the toes and cold sensation in both feet.
2. The veteran's service connected residuals of frostbite of
both feet are manifested by objective evidence of erythema of
the distal toes and significant loss of nail tissue with
hypertrophic onychomycosis primarily involving the great
toenails.
CONCLUSIONS OF LAW
1. The criteria for the assignment of a 30 percent rating
for the veteran's service-connected residuals of frostbite of
the right foot are met. 38 U.S.C.A. § 1155 (West 1991);
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000); 38 C.F.R. § 4.104, Diagnostic Code
7122 (2000).
2. The criteria for the assignment of a 30 percent rating
for the veteran's service-connected residuals of frostbite of
the left foot are met. 38 U.S.C.A. § 1155 (West 1991);
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000); 38 C.F.R. § 4.104, Diagnostic Code
7122 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
In June 1999, the RO granted service connection for residuals
of frostbite of the right foot and the left foot, rated 10
percent disabling respectively. The veteran filed a notice
of disagreement in September 1999, initiating the present
appeal.
The evidence of record includes a VA cold injury protocol
examination performed in October 1998, subsequent to the
veteran's filing of his original claim for service
connection. The veteran complained of persistent pain in his
toes. Physical examination revealed peeling of skin from the
soles, some erythema of the toes, and significant loss of
nail tissue with evidence of onychomycosis, a localized
fungal infection of the nails. The diagnosis was frostbite.
A VA podiatric examination was provided in October 1998, ten
days following the aforementioned examination. Upon
examination, the examiner noted skin color to be normal. The
examiner diagnosed overgrowth of the great toenails of both
feet, having found no other abnormalities. The examiner
qualified his diagnosis by adding that the examination was
conducted during a period of quiescent symptoms and that
physical findings could have been significantly altered had
the examination been performed during a "flare-up."
Outpatient treatment records originating from the Syracuse VA
Medical Center (VAMC) indicate treatment of bilateral heel
pain resulting from calcaneal spurs, but no treatment of the
residuals of frostbite or any cold injury. Upon X-ray
examination in October 1998, no evidence of osteonecrosis, or
the death of bone mass, residual to frostbite was revealed.
Furthermore, no other abnormalities in the bones or joints of
the feet were revealed aside from the presence of bilateral
plantar calcaneal spurs. A later X-ray study of the
veteran's feet in September 1999 revealed no changes.
A follow-up VA examination was provided in October 1999,
subsequent to the veteran's filing of his appeal for a higher
initial rating. The veteran complained of pain in the left
great toe, with intermittent swelling. The veteran also
complained of heel pain and related that previous x-ray
examinations had indicated heel spurs. The examiner noted
bilateral onychomycosis primarily involving the great toes,
and erythema of the toes. Additionally, the examiner noted
minimal hair growth on the toes, but normal hair growth over
the upper surface of the foot. Upon physical manipulation,
the examiner found the veteran's feet warm to the touch, but
found the veteran's toes were cool upon palpation.
Furthermore, the examiner noted no pedal pulses. The
impressions were residuals of frostbite and plantar
fasciitis. In an addendum to the examination report, the
examiner noted that bilateral foot x-rays taken in September
1999 showed bilateral plantar calcaneal spurs. The examiner
requested blood flow studies of the bilateral feet, the
results of which showed mild, but not significant, stenosis.
On three occasions, private podiatrist Jay Levy, DPM,
submitted written comments regarding his treatment of the
veteran. In an August 1998 note, Dr. Levy stated that he had
treated the veteran since February 1969 for fungus of the
toenails. In a September 1998 note, Dr. Levy indicated that
the veteran had undergone debridement of the toenails, whose
overgrowth was due to poor blood circulation of the toes.
Finally, in an October 2000 letter submitted directly to the
Board, Dr. Levy explained that the veteran was being treated
for painful, hypertrophic toenails. He perceived some
deformity caused by exposure to cold with some paresthesia of
the digits in both feet.
II. Analysis
The veteran contends that his service-connected residuals of
frostbite of the right and left foot are more disabling than
currently evaluated and warrant a rating in excess of 10
percent, respectively.
The veteran's service-connected residuals of frostbite of
both feet have been rated under the provisions of 38 C.F.R. §
4.104, Diagnostic Code (DC) 7122, pertaining to cold injury
residuals. Under DC 7122, a rating of 30 percent is
warranted if there is evidence of arthralgia or other pain,
numbness, or cold sensitivity, plus two or more of the
following indications: tissue loss, nail abnormalities,
color changes, locally impaired sensation, hyperhidrosis, and
X-ray abnormalities (osteoporosis, subarticular punched out
lesions, or osteoarthritis). 38 C.F.R. § 4.104, DC 7122. If
arthralgia or other pain, numbness, or cold sensitivity, is
accompanied by only one of the aforementioned indications, a
rating of 20 percent is warranted. Id. If only arthralgia
or other pain, numbness, or cold sensitivity is present, a 10
percent rating is warranted. Id. Each body part affected by
cold injury residuals is evaluated separately, and the
individual ratings are combined in accordance with 38 C.F.R.
§§ 4.25 and 4.26. 38 C.F.R. § 4.104, DC 7122 (note 2).
Amputation of fingers or toes and other complications such as
squamous cell carcinoma or peripheral neuropathy are
separately evaluated under other diagnostic codes. 38 C.F.R.
§ 4.104, DC 7122 (note 1). Other disabilities that have been
diagnosed as the residual effects of cold injury (e.g.,
Raynaud's phenomenon, muscle atrophy) are also evaluated
separately, unless they are used to support an evaluation
under DC 7122. Id.
Following a complete review of the claims folder, the Board
finds that the criteria for a rating of 30 percent for
service-connected residuals of frostbite of the right foot
and the left foot are met, respectively. The evidence of
record reflects manifestations of pain, as well as objective
findings of nail abnormalities and color changes,
corresponding to the applicable rating schedule warranting a
30 percent evaluation. See 38 C.F.R. § 4.104, DC 7122.
The medical evidence of record reflects consistent subjective
complaints of pain in both feet, thus satisfying a primary
indicator of cold injury residuals meriting a 30 percent
evaluation. Furthermore, the medical evidence of record
reflects observations of nail abnormalities of both feet,
variedly diagnosed as onychomycosis, hypertrophic toenails,
and overgrowth of the great toenails. Finally, there are
consistent findings of erythema (or redness of the skin) of
the toes of both feet, thus suggesting color changes of the
toes. In the only contrary examination of record, where
normal skin color of both feet was observed in October 1998,
the examiner admitted a tentative diagnosis. The examiner's
observation may also support the indication of transition in
coloration.
Notwithstanding the relatively mild nature of the veteran's
service-connected disabilities, the Board finds that the
evidence supports the veteran's claim for a rating of 30
percent for residuals of frostbite of the right foot and of
the left foot, respectively. Based on current clinical
findings, the preponderance of the evidence is in support of
an increased rating and the appeal is granted.
As a final matter, the Board notes that the veteran has
submitted additional evidence that was received by the Board
without a waiver of RO review pursuant to the procedural
protections of 38 C.F.R. § 20.1304. The regulation provides
that during the post-certification and post-transfer 90-day
period, unless the Board decides the case earlier, the
claimant may submit additional evidence. The regulation
further provides that, unless expressly waived by the
veteran, any additional evidence deemed pertinent must be
referred to the RO for issuance of a Supplemental Statement
of the Case (SSOC). However, since the Board assigns the
highest schedular evaluation for the veteran's disabilities,
a remand would serve no useful purpose. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) (remands which would only
result in unnecessarily imposing additional burdens on VA
with no benefit flowing to the veteran are to be avoided);
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran).
Furthermore, the Board observes the RO has not been afforded
an opportunity to consider the claim under the Veterans
Claims Assistance Act of 2000, and thereby determine whether
additional notification or development action is required.
During the pendency of this appeal, the Veterans Claims
Assistance Act of 2000 has eliminated from 38 U.S.C.A.
§ 5107(a) the necessity of submitting a well-grounded claim
to trigger VA's duty to assist (thus superseding the decision
in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub
nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6,
2000) (per curiam order), which had held that the VA cannot
assist in the development of a claim that is not well
grounded). The new law has defined duties to notify and
assist the veteran regarding his claim. The Veterans Claims
Assistance Act of 2000 provides that the veteran must be
notified of any information, including medical or lay
evidence, necessary to substantiate his claim. Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a),
114 Stat. 2096, 2096 (2000) (to be codified as amended at
38 U.S.C. § 5102). Furthermore, in pertinent part,
reasonable efforts must be made to obtain records (including
private records) that the veteran sufficiently identifies,
and the veteran must be notified if identified records are
unavailable. Veterans Claims Assistance Act of 2000, 114
Stat. at 2097-98. In this regard, the Board notes that
further development may have been warranted, as it is evident
that full treatment records from the office of Dr. Levy have
not been obtained. As referenced previously regarding
procedural protections outlined in 38 C.F.R. § 20.1304, since
the veteran's claims are granted, the Board's advancement of
the instant claims presents no prejudice to the veteran and a
remand would serve no useful purpose. See Sabonis v. Brown,
6 Vet. App. at 430; Bernard v. Brown, 4 Vet. App. 384 (1993);
Soyini v. Derwinski, 1 Vet. App. at 546. Further development
and further expending of VA's resources is not warranted.
ORDER
1. A higher initial rating for the residuals of frostbite of
the right foot, rated as 30 percent disabling, is granted,
subject to the applicable criteria governing the payment of
monetary benefits.
2. A higher initial rating for the residuals of frostbite of
the left foot, rated as 30 percent disabling, is granted,
subject to the applicable criteria governing the payment of
monetary benefits.
Iris S. Sherman
Member, Board of Veterans' Appeals